Citation Nr: 1303183	
Decision Date: 01/30/13    Archive Date: 02/05/13

DOCKET NO.  09-14 449	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a skin disability, claimed as growths on the armpits.


REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


ATTORNEY FOR THE BOARD

C. Hancock, Counsel

INTRODUCTION

The Veteran served on active duty from August 1979 to August 1982.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied the claim.

The claim was remanded by the Board in July 2010 and October 2011 for additional development and to address due process concerns.  The actions directed by the Board have been accomplished to the extent possible, considering the level of participation shown to have been exerted by the Veteran, and the matter has been returned for, and is ready for, appellate review.

When this claim was remanded in October 2011 it was considered, in light of the findings enunciated by the United States Court of Veterans Appeals (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009), at the same time as a claim seeking entitlement to service connection for abscesses on the buttocks.  As part of a December 2012 rating decision the RO, in bifurcating the claims, granted service connection for abscesses on the buttocks, but continued to deny the claim for service connection for growths on the armpits.  As such, this specific claim remains before the Board for appellate consideration 


FINDING OF FACT

There is no competent evidence of record that there was a definite diagnosis of a disorder manifested by growths on the armpits in service, nor is there a current diagnosis of such a disorder.

CONCLUSION OF LAW

The criteria for service connection for a skin disability, claimed as growths on the armpits have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Notice was provided in an October 2006 letter.  Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim.  There is no evidence of any failure on the part of VA to further comply with VCAA that reasonably affects the outcome of this case.

Finally, the duty to assist the appellant has been satisfied in this case.  The Veteran's service treatment records and VA post service treatment records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claim.  The appellant has not informed VA of any outstanding existing medical records which may be helpful in the adjudication of his claim.  VA is not on notice of any evidence needed to decide the claim which has not been obtained.  

The Board remanded the claim in order to obtain a VA examination and opinion and the RO attempted to afford the Veteran a VA examination in connection with the claim.  As detailed below, the Veteran failed to report to an examination.  The record includes documentation of VA's efforts to contact him and contains no justifiable indication of the reason for the appellant's failure to appear for the VA examination.  Nonetheless, he failed to report for the examination and did so without good cause.  The Board finds that the appellant was given more than one opportunity to present for a VA examination, and therefore VA satisfied its duty to assist.

For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim.  No further assistance to the appellant with the development of evidence is required.  38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).

Accordingly, the Board will address the merits of the claim. 

Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology.  See Barr v. Nicholson, 21 Vet.App. 303 (2007).  Continuity of symptomatology can be demonstrated by showing (1) that a condition was "noted" during service; (2) evidence of continuous symptoms after service; and (3) medical, or in certain circumstances, lay evidence of a nexus between the current disability and the postservice symptoms.  Savage v. Gober, 10 Vet.App. 488 (1997).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran seeks entitlement to service connection for a skin condition manifested by growths on the armpits.  He asserts that growths have been removed from his armpits.  See September 2007 notice of disagreement.  The Veteran is not shown to have claimed to have had continuous symptoms since service.

The Veteran's service treatment records are devoid of either references relating to, complaints of, or treatment afforded the Veteran for growths on his armpits.

The Veteran sought service connection for the instantly-claimed disorder in July 2006.  See VA Form 21-4138.  

The post-service medical evidence of record consists entirely of VA treatment records and a VA compensation and pension examination report.

A single VA outpatient treatment record on file refers to the Veteran's claimed disorder.  This record, a surgical consult note dated in February 2004, shows complaints of hidradentitis for the past six months.  The Veteran reported having this problem in the axilla (i.e., armpits).  He did not say when this had occurred.  Examination is not shown to have discerned the presence of growths on the armpits.  

The Board remanded the claim in October 2011 in order for the Veteran to undergo a VA examination.  The examiner was requested to provide, for any diagnosed skin disorder, an opinion as to the etiology of the disorder.  This examination was conducted in November 2011.  The Veteran gave a history of in-service abscesses and boils on his buttocks.  He did not inform the examiner of a history of growths on the armpits.  Examination findings revealed depressed diffusive scarring over the right buttock, more than on the left buttock.  Hidradenitis suppurativa was diagnosed.  As noted previously, service connection for abscesses on the buttocks was granted in December 2012.  

An August 2012 deferred rating decision shows that the Appeals Management Center determined that the Veteran's claims file needed to be returned to the VA examiner who conducted the November 2011 examination so that, in pertinent part, it could be indicated whether or not the Veteran had a current skin condition under his armpits.  

Review of the claims folder reveals that multiple efforts were undertaken by VA to inform the Veteran that a VA medical facility was going to schedule him for an examination.  Such an examination was scheduled to take place in September 2012.  A VA Form 21-0820, Report of General Information, shows that a VA employee sought to contact the Veteran via the telephone in November 2011.  The number attempted was noted to be a bad number.  A September 2012 letter to the Veteran sought to inform him that when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied.  Examples of good cause were noted to include illness or hospitalization and the death of a family member.  

Evidence in the file also includes a computer printout listing several possible addresses of the Veteran.  Another VA Form 21-0820, dated in December 2012, shows that the Veteran's sister was contacted, and she indicated that there was no way to establish contact with the Veteran.  She added that he used her address for mail, and called her on occasion.  

VA regulations provide that when a claimant fails, without good cause, to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  As above noted, examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or death of an immediate family member.  38 C.F.R. § 3.655(a).

The Board acknowledges that VA has not been contacted by either the Veteran or his representative concerning the Veteran's inability to appear for a VA examination.  As such, based on these factual findings, the claim will be adjudicated based on the evidence of record.  

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for growths on the armpits.  As mentioned, the service treatment records are totally devoid of any mention of growths on the Veteran's armpits.  Also, the Veteran did seek medical attention on numerous occasions during his active military service for other maladies.

The only evidence linking the Veteran's claimed disorder to his service is his own lay contentions.  In this regard, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau.  Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  See also Buchanan, at 1337 (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  If the Board concludes that the lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.)

There is no medical evidence of any post-service diagnosis of growths on the armpits in this case and no medical or competent lay evidence of any such symptoms over the years since service.  This factual finding is of great significance, in that the Board notes that a necessary element for establishing service connection -- evidence of a current disability -- has not been shown.  See Gilpin v. West, 155 F.3d 1353, 1356 (Fed. Cir. 1998); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary); and McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves).  In the absence of proof of present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

Here, the record is devoid of a finding that the Veteran currently has a skin disability manifested by growths on the armpits, the specific disorder for which benefits are being claimed, or that such claimed disability has been shown by credible medical evidence to have been diagnosed during the course of the appeal.  McClain.

In summary, the record contains no competent evidence linking either a current diagnosis concerning the Veteran's armpits, or a history thereof, to the Veteran's military service.  Thus, after considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for growths on the armpits because the competent evidence does not reveal a nexus between the Veteran's military service and the claimed disorder.  Absent such a nexus, service connection may not be granted.  38 C.F.R. § 3.303.  The Board again notes that the claimed disorder is not presently shown to be manifested.  See Brammer.

In reaching this decision on the claim for service connection for a skin disability claimed as growths on the armpits, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's service connection claim, the doctrine is not for application.  Gilbert, at 54.  Accordingly, the Board concludes that service connection for the claimed disorder is not warranted.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.303, 3.304.


ORDER

Service connection for a skin disability, claimed as growths on the armpits is denied. 



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs